5.  The applicants are ethnic Uighur Muslims from Xinjiang, an autonomous region in northwest China (the “Xinjiang Uighur Autonomous Region” or “XUAR”), and were born in 1972, 1974, 1972, 1977 and 1974 respectively. According to the latest information provided to the Court, the first, fourth and fifth applicants currently live in Istanbul, the second applicant lives in the Netherlands and the third applicant lives in Egypt. They all left China on different dates mainly because of the pressure and fear of persecution they faced there as practising Muslims of Uighur ethnic origin.
6.  On 12 July 2008 the second applicant, who had entered Turkey legally in August 2007, was arrested in Istanbul following an identity check, which revealed that he had overstayed his visa and was thus in Turkey illegally. He was placed in the Kumkapı Foreigners’ Admission and Accommodation Centre attached to the Istanbul Police Headquarters.
7.  On 1 August 2008 the Ministry of the Interior instructed the Istanbul Governor’s Office to deport the second applicant.
8.  In the meantime, on 17 July 2008 a meeting was held between the General Security Directorate and representatives from the Chinese Government office in Ankara regarding security measures to be taken in connection with the 2008 Beijing Olympics. The Chinese Government agents informed the Turkish authorities that they had identified approximately fifty members of the East Turkestan Islamic Movement (“ETIM”) – considered a terrorist organisation by the Chinese Government – who had undergone training in Pakistan for seven months. While some of the group had been captured in the United Arab Emirates (Dubai) while preparing for an attack, approximately thirteen others had escaped to Turkey through Saudi Arabia, Iran, Afghanistan and Pakistan. These individuals aimed to carry out an attack on Chinese targets in Turkey using their connections there, and were collecting intelligence on the Olympics and explosives for that purpose. The Chinese authorities provided a list of the suspects they believed had fled to Turkey, which included all five applicants.
9.  Following a decision by the Ministry of the Interior, and on the basis of the security information received from the Chinese authorities, on 25 July 2008 the applicants’ names were registered on the list of persons banned from entering into Turkey.
10.  On 6 August 2008 the Anti-Terror Branch of the Istanbul Security Directorate (Terörle Mücadele Şube Müdürlüğü) advised the Istanbul Governor’s Office by letter of the information received from the Chinese authorities and the Turkish National Intelligence Agency regarding the presence of trained ETIM members in Turkey aiming to carry out terrorist attacks in China or Turkey prior to, during or in the aftermath of the Beijing Olympics. The addresses used by the suspects in Istanbul were also indicated in this letter.
11.  On the same date the Ministry of the Interior instructed the Istanbul Security Directorate to hold any suspects captured on the basis of the information received from the Chinese Government at the Foreigners Department of the Istanbul Security Directorate for the duration of the Olympic Games, with a view to them being expelled after the end of the Games. According to the internal documents and correspondence submitted by the Government, the Turkish authorities were concerned that a terrorist attack on Turkish soil, including on Chinese targets, would paint a negative image of the country in the international arena and also damage its relations with China.
12.  In a separate letter dated 6 August 2008, the Ministry of the Interior requested that the deportation order of 1 August 2008 in respect of the second applicant be halted until after the end of the Olympic Games, and ordered that he be detained at the Kumkapı Foreigners’ Admission and Accommodation Centre in the meantime.
13.  Following targeted police raids conducted on 7 August 2008 at the addresses of the suspects, ten Chinese nationals of Uighur origin, including the four remaining applicants, were apprehended and placed in the Kumkapı Foreigners’ Admission and Accommodation Centre. According to internal correspondence between different administrative bodies, the apprehended individuals were also found to have entered Turkey illegally and/or to have contravened visa regulations; however, the searches conducted in their houses did not yield any illegal material.
14.  On 3 September 2008, following the end of the Olympic Games, the Ministry of the Interior sent instructions to the Istanbul Governor’s Office regarding the actions to be taken in respect of the ten Uighurs apprehended on 7 August 2008. In this connection, it requested the removal of the four applicants from Turkey upon recommendations from the National Intelligence Agency, which considered their continued presence in Turkey to be problematic in terms of the Government’s international relations. As for the remaining six individuals captured on the same date, it appears that they were released from detention and granted non-renewable residence permits valid for three months, with an invitation to leave Turkey by the end of that period.
15.  On 17 September 2008 the Ministry of the Interior sent similar instructions to the Istanbul Governor’s Office for the deportation of the second applicant, in accordance with its earlier deportation order of 1 August 2008.
16.  It appears that the applicants were not officially served with a deportation order, but were only verbally informed of that possibility by officers at the place they were being detained.
17.  On 19 September 2008 the applicants asked for asylum in Turkey through their lawyer. They claimed that if returned to China, they would be subjected to long-term imprisonment, and would face the risk of torture or even the death penalty.
18.  On 20, 22 and 23 September 2008 the authorities conducted brief interviews with the applicants, in the absence of their lawyer, in connection with their asylum requests. According to the interview forms, all applicants stated that they had escaped from China because of the oppression and persecution of the Uighurs by the Chinese authorities, and feared that if returned to China, they would risk imprisonment, torture or even the death penalty. None of them declared having ties to any political, religious or terrorist organisations. Their interpreter during the interviews was a fellow Uighur detainee also being held at the Kumkapı Foreigners’ Admission and Accommodation Centre.
19.  In a letter dated 26 September 2008 the Ministry of the Interior informed the Istanbul Governor’s Office that the applicants’ asylum request would not be accepted; however, it did not refer to any official decisions taken to that effect. The letter indicated that although the applicants had been living in Turkey illegally for some time, they had not asked for asylum either before or immediately after their arrest, which suggested that their recent asylum request was aimed solely at prolonging their stay in Turkey. Accordingly, the Ministry reiterated the order for their immediate deportation. The applicants were not sent a copy of this letter, nor were they served with a deportation order.
20.  On 13 October 2008 the applicants applied to the United Nations High Commissioner for Refugees (“UNHCR”) and requested to be recognised as refugees. On 27 October 2008 the UNHCR issued them with asylum seeker certificates.
21.  On 21 October 2008 the applicants’ lawyer went to the Kumkapı Foreigners’ Admission and Accommodation Centre to enquire whether the applicants would be deported and, if so, whether he could obtain the relevant deportation orders. The authorities verbally informed the lawyer that the applicants would be deported, but they did not indicate the date of the deportation. They also refused to give or even show the lawyer a copy of the orders.
22.  On 22 October 2008 the applicants’ lawyer sent a letter to the Foreigners’ Department of the Istanbul Security Directorate, demanding access to the administrative decisions so far issued in respect of the applicants, including the deportation orders, in order to initiate legal proceedings against those decisions as necessary. The lawyer also requested that, as their legal representative, all future actions and decisions concerning the applicants should be notified to him. There was, however, no response to his letter and he continued to be refused access to the applicants’ files.
23.  On 26 October 2008 the applicants were taken to the Iranian border in Ağrı for deportation, without any prior warning. When the Iranian authorities refused the applicants entry into Iran, they were taken back to Istanbul and placed back in the Kumkapı Foreigners’ Admission and Accommodation Centre.
24.  On 28 and 31 October 2008 the applicants’ lawyer wrote two separate letters to the Foreigners’ Department of the Istanbul Security Directorate, reiterating his previous requests to have access to the administrative decisions against them. The lawyer reminded the authorities that the applicants’ access to the deportation orders against them was essential in order to exercise their fundamental right to challenge them before the competent authorities and the courts, particularly in view of the serious risks they would be exposed to if returned to China. The lawyer repeated these arguments in two subsequent letters he sent to the relevant authorities on 3 and 7 November 2008 respectively, both of which remained unanswered. It appears, however, that the lawyer was verbally informed that the restriction on his access to the applicants’ files was based on section 12 of Circular no. 57, a directive providing guidelines regarding the treatment of asylum requests (see paragraph 66 below for further details).
25.  On 1 November 2008 the applicants met with their lawyer at the Kumkapı Foreigners’ Admission and Accommodation Centre. All applicants, except for the fourth, informed the lawyer that members of their families in the XUAR had been harassed or imprisoned on account of their escape from China, where they were still wanted as terrorists.
26.  On 2 February 2009 the applicants were released from detention for an unknown reason. Three days later they were summoned to the Foreigners’ Department of the Istanbul Security Directorate by the police, and were informed that they would be given residence permits. However, once there, they were rounded up and placed back in the Kumkapı Foreigners’ Admission and Accommodation Centre, without any explanation.
27. On 13 February 2009 the Ministry of the Interior issued its official decision rejecting the applicants’ asylum claim. In the decision, the Ministry briefly held that the claims put forth by the applicants in support of their asylum requests failed to meet the criteria of the 1951 Geneva Convention relating to the Status of Refugees (“Geneva Convention”) and the relevant domestic regulations (“the 1994 Regulation”) to be recognised as a refugee. The decision did not involve any discussion about the applicants’ claims and the international and/or domestic standards against which they were examined.
28.  On 23 February 2009 the decision of the Ministry of the Interior was served on the applicants, but was not notified separately to their lawyer. The applicants were informed that they could file an objection to the decision within two days of receipt.
29.  On 24 February 2009 the applicants’ lawyer sent a further request to the Foreigners’ Department of the Istanbul Security Directorate. He firstly complained that despite repeated requests since October 2008, the administrative decisions taken against the applicants, including the most recent one refusing their asylum claim, were not being notified to him, and that he was still being denied access to their files. He further complained that the two‑day time‑limit granted for objecting to the rejection of the asylum claim was too short, and requested an extension as well as access to the applicants’ files, in order to submit an effective appeal.
30.  On 25 February 2009, in the absence of any response to their extension request, the applicants submitted their objection to the Ministry’s decision of 13 February 2009 through their lawyer. They explained that they had escaped from China on account of the persecution they faced as ethnic Uighurs of the Muslim faith. They were all being pursued by the Chinese police because of their political views; the third applicant had already served a two-year sentence back in 1994 for declaring political views unfavourable to the Chinese Government. While they had been culturally assimilated, discriminated against and treated as second‑class citizens since the occupation of East Turkestan by China in 1949, the pressure exerted on Uighur opponents had increased since September 11, 2001 under the guise of the global war against terrorism. They were all branded as separatists and terrorists on account of their peaceful efforts to maintain their cultural and religious identities, and if returned to China would risk being imprisoned, tortured or even executed, suffering the fate of other failed asylum seekers. The East Turkestan Foundation, based in Istanbul, confirmed the applicants’ allegations and stated that their connection to the association would increase the risk to their lives or physical integrity if returned to China. They indicated that a number of Uighurs expelled from Pakistan, Kazakhstan and Nepal in recent years had been executed at the border by the Chinese authorities. The applicants added that their requests for refugee status were still under consideration before the UNHCR, and that they had been issued with asylum seeker certificates by that organisation.
31.  On 16 March 2009 the Ministry of the Interior sought the opinion of the Ministry of Foreign Affairs on the applicants’ objection. On 18 March 2009 the latter responded, stating that the applicants’ claims did not meet the criteria required for obtaining asylum seeker status. It is, however, not clear upon what factual or legal basis the Ministry of Foreign Affairs reached that decision.
32.  On 27 April 2009 the applicant’s lawyer was allowed to take copies of a limited number of documents and decisions concerning the applicants, pre-selected by the authorities.
33.  In the meantime, on 23 February 2009, the applicants brought an action before the Istanbul Administrative Court for their release from detention and requested that the deportation proceedings against them be stayed. They also reiterated their claims as to why they did not wish to be sent back to China, where they were wanted as terrorists, and reproached the authorities for their unlawful attempt to deport them to Iran. They further complained that the authorities’ decision to deny them access to the decisions and other documents contained in their files prevented them from effectively challenging those decisions before the courts.
34.  On 3 April 2009 the Istanbul Administrative Court dismissed the applicants’ case on procedural grounds, holding that their applications should have been introduced separately instead of jointly. It therefore invited the applicants to reintroduce their applications individually, and to duly include copies of all relevant requests lodged with the authorities, as well as the responses received to those requests, in their applications. It is not clear when this decision was served on the applicants; however, they did not pursue these proceedings any further.
35.  On 24 April 2009 the applicants sent a letter to the Department of Foreigners, Borders and Asylum at the Ministry of the Interior (Yabancılar Hudut ve İltica Daire Başkanlığı) requesting the end of their unlawful and arbitrary detention and their immediate release.
36.  On 10 June 2009 the applicants were released from the Kumkapı Foreigners’ Admission and Accommodation Centre, following an interim decision issued by the Court under Rule 39 of the Rules of Court (see paragraphs 59 and 60 below). In a letter submitted to the Court the same day, the Government stated that the applicants were allowed to stay in Turkey because of the interim measure of the Court.
37.  On 29 April 2009 the Ministry of the Interior informed the Istanbul Governor’s Office that the second applicant’s objection to the refusal of his asylum request had been rejected on 31 March 2009, for it could not be established that he had ties to any illegal organisations. It was moreover decided that he should not be granted a residence permit under “foreigner status” within the framework of the Law on the Residence and Travel of Foreigners in Turkey (“Law no. 5683”). The Ministry accordingly requested the second applicant’s immediate deportation. Although the objections to the refusal of their asylum requests had been lodged at the same time, no information was provided as to the outcome of the remaining applicants’ requests at that time.
38.  On 13 May 2009 the Ministry’s decision as regards the second applicant was served on the applicants’ lawyer.
39.  On 9 June 2009 the second applicant brought an action before the Supreme Administrative Court against the Ministry of the Interior. Firstly, he requested the revocation of the deportation order on 29 April 2009 on account of the threat of persecution, torture and even death he would be subjected to if returned to China, as well as that its execution be stayed pending the conclusion of the domestic proceedings. Secondly, he complained that the attempt to deport him in October 2008 had been unlawful, as there had been ongoing asylum and refugee proceedings before the domestic authorities and the UNHCR. Thirdly, he alleged that the asylum procedure had not been conducted lawfully by the national authorities; even though the asylum request had been lodged on his behalf by his legal representative, the asylum interview had been conducted in the absence of his lawyer and very perfunctorily. The interpretation provided during the interview had also been inadequate. Furthermore, the two-day period granted for objecting to the refusal of the asylum request had clearly not been long enough to allow him to formulate a meaningful objection. In addition, the refusal of his asylum request on the sole ground that he did not have ties to any illegal organisations contradicted the earlier intelligence reports linking him to the ETIM. It also demonstrated that the administration’s examination of his case did not go beyond looking into his ties to a terrorist organisation, even though they had been expected to carry out more rigorous scrutiny of the merits of his claims. Fourthly, the applicant maintained that he had been detained unlawfully at the Kumkapı Foreigners’ Admission and Accommodation Centre for over nine months. Lastly, he claimed that his repeated requests to obtain copies of the relevant administrative decisions concerning his asylum application had been left unanswered, which had restricted his access to legal remedies to contest those decisions. In this connection, he challenged the lawfulness of Circular no. 57, which had prejudiced his defence rights by, inter alia, limiting his and his lawyer’s access to his asylum file.
40.  On 10 August 2009 the Supreme Administrative Court decided to postpone the examination of the applicant’s request for the suspension of his deportation until after the Ministry had filed its defence.
41.  On 23 September 2009 the Ministry filed its first defence with the Supreme Administrative Court. The relevant parts read as follows:
“...
While the claimant claims to have been persecuted in China, he stated in the interview that he had no ties to any political, religious or social groups in China, that he had never been taken into custody, arrested or subjected to ill-treatment and that none of his family members had had any problems with State authorities.
Because of th[e] lack of consistency [in his arguments], our Ministry decided not to grant the claimant “refugee” status. Upon the claimant’s objection to that decision on 24 February 2009, our Ministry sought the opinion of the Ministry of Foreign Affairs. In its decision of 18 March 2009 the Ministry of Foreign Affairs informed our administration that the [claimant’s] asylum request “did not contain the elements required to obtain asylum seeker status”.
...
The opinion of the Ministry of Foreign Affairs is of fundamental importance to the action taken against the claimant. It is not possible for our Ministry to grant asylum seeker status to a foreigner whose stay in Turkey is deemed inappropriate by the said Ministry.
...
Expulsion of those persons, whose residence in Turkey was not deemed appropriate under the relevant legislation [Law no. 5683], is obligatory and this matter falls under the State’s sovereign prerogatives...
While it was understood in the interview conducted with the claimant that he had not been subjected to persecution, custody or arrest, he did not shy away from making denigratory statements about the Chinese State, and he also dared to criticise our foreigners’ accommodation centres. The extent to which he will disparage our country upon his deportation can only be predicted. This personal characteristic proves how fitting the decision taken against the applicant was.
...
It is out of the question that the claimant would face an irreparable damage [when deported]. This is because the claimant was not invited to our country, but came of his own free will. He is solely responsible for the current situation. It has not been possible to find a third country willing to accept him. For that reason, he has been occupying a guest house in our country for over a year.”
42.  On 7 December 2009 the Supreme Administrative Court ordered the Ministry of the Interior to disclose the following documents within fifteen days: a copy of its decision of 31 March 2009 rejecting the applicant’s objection to the refusal of his asylum request; intelligence reports or other information on the applicant’s links with a terrorist organisation in view of contradictory allegations in various administrative decisions as to the applicant’s membership of the ETIM; and information regarding the applicant’s request for refugee status from the UNHCR.
43.  On 13 January 2010 the UNHCR informed the Supreme Administrative Court that the second applicant’s request for refugee status was still being examined. The UNHCR also indicated in its letter that since 2001, the Chinese authorities had increased repression in the XUAR, targeting in particular ethnic Uighurs expressing peaceful political dissent, as well as independent Muslim religious leaders, in the name of combatting terrorism. Uighurs were accordingly given long-term prison sentences, or in some cases executed, on charges of separatism. For these reasons, the UNHCR urged the Supreme Administrative Court to intervene to stop the applicant’s deportation until the conclusion of the refugee status determination process.
44.  On 2 February 2010 the applicant reiterated his request for the suspension of his deportation.
45.  On 19 February 2010 the Supreme Administrative Court issued a stay of execution in respect of the applicant’s deportation until the administration disclosed the information requested.
46.  On an unspecified date the second applicant responded to the earlier defence of the Ministry of the Interior. In addition to reiterating his previous arguments, he contended that while his asylum request had been rejected on the grounds that he had not declared having ties to any terrorist or other organisations, the Ministry itself had admitted that his name was on the list of suspected terrorists shared by the Chinese Government with the Turkish authorities. In these circumstances, it was irrelevant that he had denied affiliation to a terrorist group; what mattered was that he was wanted by the Chinese Government for being one. Moreover, the significance of the Ministry of Foreign Affairs’ opinion regarding his asylum request demonstrated that the decision had been taken on political, not legal grounds.
47.  On 30 June 2010 the Supreme Administrative Court held that in view of the real risk of repression and persecution the applicant would face in the event of his return to China, the rejection of his asylum request and the order for his deportation, while his application before the UNHCR was still pending, appeared to be unlawful. It therefore issued a stay of execution in respect of the impugned deportation order. In the same decision, it also stayed the execution of Circular no. 57, which it considered to be ultra vires.
48.  Following the decision by the Supreme Administrative Court, on 21 October 2010 the second applicant was granted a residence permit.
49.  According to the latest information received from the parties in September 2013, the Supreme Administrative Court had still not issued a decision on the merits of the second applicant’s case by that time.
50.  According to the documents that accompanied the Government’s observations, the remaining applicants’ objections to the refusal of their asylum requests were also rejected by the Ministry of the Interior on 31 March 2009. However, unlike in the case of the second applicant, neither the decisions in question, nor the deportation orders taken on the basis of that decision were served on the applicants or their lawyer.
51.   On 2 September and 28 December 2010 the applicants requested information regarding the status of their asylum requests but received no response.
52.  It appears that on an unspecified date in 2011 the applicants were finally notified of the Ministry’s rejection of their objections to the refusal of their asylum requests, which had also entailed an order for their deportation, and brought separate actions before the Ankara Administrative Court to seek its revocation.
53.  In four separate judgments delivered on 15 February 2012 (the first and third applicants), 18 January 2012 (the fourth applicant) and 14 December 2011 (the fifth applicant) the Ankara Administrative Court acknowledged the potential risk of persecution the applicants would face in China, and consequently revoked the deportation orders against them. In its judgments, the Administrative Court also referred to the Court’s interim measure of 15 May 2009.
54.  In view of the Administrative Court’s conclusions, the first and third applicants were granted residence permits on 20 March 2012, the fourth applicant on 29 November 2011 and the fifth applicant on 24 October 2011[1].
55.  On 31 December 2012 and 18 February 2013 the Supreme Administrative Court upheld the judgments in the applicants’ favour. It appears that the Ministry’s rectification requests against those decisions are still pending before the Supreme Administrative Court.
56.  Pending a final decision on their asylum request, on 29 April 2009 the applicants’ representative asked the Court, under Rule 39 of the Rules of Court, to adopt an interim measure to stop the applicants’ possible deportation from Turkey.
57.  On the same date the President of the Chamber to which the case was allocated decided not to apply the interim measure the applicants were seeking on the basis of the facts and information presented to the Court.
58.  On 14 May 2009, following the final rejection by the Ministry of the Interior of the second applicant’s asylum request and receipt of the order for his deportation, the applicants’ representative repeated the previous request lodged under Rule 39 of the Rules of Court with further arguments and supporting documents.
59.  On 15 May 2009 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicants should not be deported to China before 15 June 2009.
60.  On 15 June 2009 the President of the Chamber decided to extend until further notice the interim measure previously indicated under Rule 39 of the Rules of Court.
61.  Some time after their release from detention, all applicants applied for Turkish citizenship. The applications of the second and third applicants were rejected for non-compliance with the relevant legal criteria. The second applicant left Turkey on 22 June 2011 and applied for asylum in the Netherlands. It appears that his application was successful and that he continues to reside there. The third applicant left for Egypt on an unspecified date.
62.  As for the remaining applicants, they were granted Turkish citizenship on unknown dates, presumably in 2012, although the Court does not have information as to the exact dates.
63.  By a letter dated 25 September 2013, the UNHCR informed the applicants’ lawyer that his clients’ files for refugee status had been closed, following the withdrawal of the applications by the first, second and third applicants, and the loss of contact with the fourth and fifth; however, it did not provide any specific dates.